When an employee’s request for medical leave is vague or is unclear, the Family and Medical Leave Act regulations specifically allow (in fact, they require) the employer to question the employee further to determine whether the absence potentially qualifies under the FMLA. When the employee fails to respond to these reasonable inquiries, the employee may lose the right to FMLA protection.

Such was the case for Robert Righi. In a fantastic opinion for employers, a federal appellate court recently upheld the dismissal of Mr. Righi’s FMLA claim because he failed to respond to his supervisor’s telephone calls inquiring about his need for a leave of absence. Righi v. SMC Corporation of America

The Facts

Righi, a salesman for SMC Corp., was the primary caretaker for his mother, who regularly suffered complications from diabetes. As a result, Righi often took FMLA leave to care for her. On the occasion at issue, however, he asked for time off after his mother accidentally overdosed on her medication.

After leaving work mid-shift on July 11, he sent an e-mail to his supervisor the morning of July 12, stating:

I need the next couple days off to make arrangements in an intermediate care facility for my Mother. . . . I do have the vacation time, or I could apply for the family care act, which I do not want to do at this time.
I hope you can understand my situation and approve this emergency time off. I will be very busy the next couple of days . . . so I might be slow getting back to you.

On receipt of the e-mail, Righi’s supervisor made numerous attempts to contact Righi over the following seven days (in fact, well over ten times during that period). On July 19, Righi finally returned his calls, admitting that he turned off his cell phone for a week. Righi subsequently was terminated for violating SMC’s call-in policy. Righi sued, alleging that SMC interfered with his right to take FMLA leave.

The Ruling

The Court addressed two issues, both of which should be of interest to employers:

When an employee states that he does not want to take FMLA leave “at this time,” is he affirmatively declining a request for FMLA leave? Here, the court said no. Although an employee may waive his FMLA rights if he “clearly expresses to his employer that he does not wish to use the protections of the FMLA,” this was not necessarily the case here, since Righi simply stated that he did not want to use FMLA at this time. The court reasoned that this phrase could be interpreted to imply that Righi might change his mind and opt to exercise his FMLA rights after all. In these instances, it is necessary for the employer to inquire further “through informal means” to understand the circumstances of leave request and determine whether the FMLA is applicable. 29 C.F.R. 825.303(b). This is precisely what SMC Corp. did here, a move which ultimately saved the day for the Company.

Given Righi’s initial (ambiguous) notice to SMC, does his failure to respond to his supervisor’s telephone calls affect his right to FMLA leave? Yes! The employee has an obligation to respond to an employer’s questions that are designed to determine whether an absence is potentially FMLA-qualifying. When an employee does not respond, it may result in denial of FMLA protection. According to the court, Righi’s failure to respond to any of his supervisor’s calls for more than seven days “doomed” his FMLA claim.

Insights for Employers

Employers can learn a lesson from SMC Corp’s response. When it received a rather ambiguous request for leave, the Company (indeed, a wise supervisor) attempted to communicate with Righi to determine the nature of the need for leave, and the timing and duration of his absence. In doing so, it met its obligations under the FMLA. At that point, it was Righi’s obligation to provide this additional information.

When the need for leave is unforeseeable, as was the case here, the employee often will not know exactly how much leave he will need. That’s understandable. However, as the court pointed out, the employee must at least communicate thisfact to the employer, along with an estimate of the likely duration of the requested leave. According to the court, Righi’s FMLA claim was “doomed” because he made “no effort whatsoever” to keep SMC apprised of his fluid situation and was absent and out of touch with his supervisor for more than a week.

The lesson here? Stay in touch, ask questions (especially when the request is vague or ambiguous) and insist that the employee maintain contact with you (pursuant to your call-in policies) to communicate the timing and duration of his or her absence.

About Jeff Nowak

Jeff Nowak is co-chair of the labor and employment practice at Franczek Radelet, where he represents employers in all aspects of employment law. His clients praise him as a trusted business partner who is acutely aware of their business goals and the impact employment decisions have on their operations. A staunch advocate and effective litigator for his clients, Jeff also isn’t afraid to be candid with clients where compliance issues or litigation must be resolved to meet business objectives. He is a nationally-recognized leader in the FMLA and ADA, and his passion for the FMLA shows through on this blog.